About Me

Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Monday, February 16, 2009

The idiocy of "defamation of religion"

Anti-liberal actors in the international arena, such as the Muslim states of the Middle East, are pursuing a path of attempting to suppress what they call "defamation of religion". Their campaign is achieving some success, and I believe we must take it very seriously.

The whole idea of defamation of religion is nonsense. Taken literally, it would mean that I could not utter any falsehood that is damaging to the reputation of a religion (so, it might lead people to leave the religion or doubt its doctrines, or fail to be convinced to convert to it). But a religion has no right to flourish, be believed, retain adherents, gain converts, or anything of the sort. On the contrary, it is in the public interest that the truth and credibility of various religions be tested continually, and it is quite within my rights to try to convert people from their current religion to my religion of choice or to an anti-religious position. Much like political ideologies, religions have to take their own chances. Many things will be said for and against various religions, and some of those things will not be true, even if they are said sincerely.

In that sense, the flourishing of a religion is simply not analogous to the flourishing of citizens. The concern that the state has to protect the flourishing of its citizens in no way applies to religions. If a religion dies out through a peaceful process of deconversions or a failure to reproduce itself, the state should be entirely neutral about whether that's a good thing or a bad thing.

Even apart from that fundamental point, the justification for defamation law can't simply be scaled up to apply to the "defamation" of something like a religion. On the contrary, we should ensure that speech about the public actions of elected officials and other public figures, the actions of business corporations, the actions of religious organisations and communities of religious believers, and the truth of religious doctrines, etc., is not chilled by applying concepts of "defamation" beyond their very narrow area of justification. In some cases, this might require narrowing of the existing law (e.g. in its application to large business corporations).

Let's look at this issue of justification. If The Sydney Morning Herald accuses me of being a pedophile, it will be very difficult to remove that slur without taking some kind of action in the courts. If the slur is believed by my friends, they will shun me. If it's thought more widely that there's any truth in the slur, then my career will undoubtedly be ruined. Indeed, in situations like that individuals can be ostracised - and so destroyed as social beings - and it seems that the only way to counter the possibility is by invoking the majesty of the law to clear their names and/or provide heavy damages for the loss. That provides some deterrence to giant media corporations, which wield private power, acting in ways that can ruin individual lives. Media corporations take potential legal liability for defamation seriously, and that's usually a good thing. It gives some reassurance to those of us who are not media magnates.

By contrast, consider the public actions (not, for example, the sex lives) of elected officials. It's well known that these actions are controversial and that any criticism, no matter how trenchant (or plausible-seeming), has to be taken with a grain of salt. Furthermore, elected officials have enormous resources with which to put across their own viewpoints and defend themselves without recourse to the majesty of the law for vindication. Moreover, whereas the sex life of an individual citizen is not, prima facie, a matter whose discussion is of public interest, there is great public interest in conducting robust discussions of the public actions of elected officials.

Accordingly, it should at the very least be extremely difficult for elected officials to succeed in defamation cases relating to criticism of their public actions. Over the past 15 years or so, Australian law has been moving in that direction, and it has long been so in the US.

When it comes to religious organisations, and to religious claims about prophets, gods, and so on, there is even less need to resort to the majesty of the law. If it's claimed that Muhammad was a pedophile, that has no effect on Muhammad, who is long dead, has no friends to shun him, has no career that can be ruined. Moreover, there are literally hundreds of millions of followers of Muhammad to defend him, and many of them wield enormous power and influence, and have easy access to the mass media. Furthermore, it's known that issues surrounding the lives of ancient and medieval prophets and saints are matters of heated and almost intractable controversy, so any false claims will be taken with a grain of salt by reasonable people. Such people either ignore the claims or look a bit more deeply, rather than accepting them uncritically. Indeed, the greater problem that we face is that even true claims in criticism of religion will not be taken seriously by the general population. At the same time, there is a strong public interest in discussing the origins and credibility of religions. Was Muhammad a good role model for contemporary Muslims or not? Are the traditional claims about his life even credible? With such questions, there is an overwhelmingly strong case that there should not be anything like a defamation action available. That case is even stronger than the equivalent case applying to the public actions of elected officials.

Similarly for claims about the behaviour of religious organisations. These organisations wield enormous power and influence, and their actions are inevitably controversial. Organisations such as the Catholic Church have practically unlimited resources to defend themselves against untrue claims, without needing recourse to law, and even true claims are likely to be greeted with disbelief by adherents and cynicism by many others. It's true that many less rational people will swallow nonsense such as Dan Brown's The Da Vinci Code, but even more will accept religious dogma, and the fundamental rightness of an organisation such as the Church, as a result of childhood indoctrination. It is in the public interest to discuss the actions of these organisations without enacting laws that chill the debate.

When it comes to actual religious doctrines and rejection of those doctrines, the case against anything like a concept of "defamation" is stronger still. If someone says "The Abrahamic God does not exist", well, even if God does exist he will not be shunned by friends or have his career ruined. There is no equivalent to destroying him as a social person. Claims about God's existence or non-existence are highly, intractably, controversial, and many people treat all such discussion with derision, despite its philosophical importance. Although most citizens are probably more worried about their children, their mortgages, and so on, it is important to conduct philosophical inquiry into religious claims, and we must ensure that the discussion is not chilled by any such concept as "defamation of religion".

I could go on and on about how the justification for some kind of concept of defamation in liberal societies is an extremely narrow one, and how attempts to broaden it into concepts of group defamation, or even worse, defamation of religion, are fundamentally flawed. It seems that the immediate target of those who seek to prevent defamation of religion is to prohibit claims that something about Islam tends to lead its adherents to terrorism. But that claim is surely at least arguable: whether or not it can be defended at the end of the day, it is a controversial, yet important claim that merits fearless discussion. We should be very reluctant to suppress such claims, and of course Muslim leaders and intellectuals have enormous resources available to them to put their own side of the story without taking such a controversial and debatable psychological/sociological/theological thesis to the courts for an official ruling.

Thus, it would be incredibly simplistic to say, "Defamation of individuals is a bad thing; therefore anything analogous to it is a bad thing." Even the first part of this is misleading if it's intended as a broad generalisation - if the individuals concerned are elected officials and the "defamation" relates to their public conduct (not, say, to their sexual practices) then it is by no means obvious that any false criticisms should be cognisable by the law as a "bad thing". The law should not apply to criticism of the public acts of elected officials in the same way that it does to statements about the character or private conduct of ordinary citizens. The private conduct of elected officials may fall somewhere in between, but it should normally receive protection from defamatory claims.

Once we move beyond individuals to organisations, communities, bodies of religious or political doctrine, and so on, it is even less obvious that any legal concept of defamation is applicable. Indeed, it should be obvious that all the indicia point the other way: i.e., there should not be a legal concept of "defamation of religion", whatever, exactly, the concept is supposed to amount to. It is in the public interest that scrutiny of religion go ahead from every possible angle (philosophical, historical, sociological, etc.) without the ensuing discussion being chilled by anything analogous to defamation law.

We should be camapaigning to confine defamation law as narrowly as possible, not extend it even further. What I would support (and this already exists in some, perhaps many, jurisdictions) is a narrowly-confined tort of interference in privacy, according to which even true publications about the strictly private behaviour of individuals can be met by a claim for damages. Such revelations can greatly damage individuals as social beings, and the individuals concerned may have no other practical redress when confronted by media corporations. But such a tort would need to be confined narrowly in some way so that it applies only to revelations in the mass media, not to everyday gossip. In any event, this is quite remote from ideas of defamation of religion. If such a privacy tort is justified, it's on a totally different basis, and it shows why the sorts of concerns that might justify certain narrow exceptions to freedom of speech don't lead to a concept such as defamation of religion.

The concept of defamation of religion is a very worrying development. If it starts to gain legal force, it has terrible potential as an encroachment on freedom of speech. I submit that we should take this very seriously and fight against it tooth and nail. Our whole Enlightenment legacy is at stake here, and if the UN continues to take an illiberal path I see no reason for compunction about criticising the UN. The UN may or may not be a useful institution, but it is certainly not beyond trenchant criticism and satire, as and when the criticism or satire is merited.

There's no need to believe that the credibility of the UN must be retained at all costs. Doubtless, the organisation has done some good, but it has failed to achieve its crucial goal of ensuring "never again" for Nazi-like genocides and atrocities. It can't take much credit for the fact that there was never a World War III between the NATO allies and the former Soviet Union and its satellites - surely that related more to a balance of terror between nuclear-armed states. I doubt that it has done much to contribute to the fundamental freedoms enjoyed in liberal societies. In any event, no matter how wonderful the UN may be, it should attract criticism just like any other powerful organisation.

Freedom of speech has been squeezed and squeezed. Yes, it's not an absolute value that can't be overridden by other values in any circumstances whatsoever. I doubt that there are any such absolute values. But exceptions to the presumption of freedom of speech need to be justified, case by case, with compelling argument and evidence, and the exceptions then need to be defined as narrowly as possible, not used by analogy for dubious new exceptions.

The time has come to shout "Enough!" We've been moving too far in the direction of creating more and larger exceptions to freedom of speech. We need a loud, popular movement to push the other way.

That is quite a spectrum to jump in one dichotomy, especially when you are blogging. The same class of distinction is getting equally blurred in the other direction. In the extremely unlikely event that I was to "publish" (whatever that means in 2009) something defamatory about Metamagician and the Hellfire Club would that "organisation" be small enough to deserve legal recourse?

Russell, you have gone to considerable pains here to set out some dimensions of background but I don't think it helps this fight we must win to neglect the dimensions entangled in the ever changing personal media environment. You just have to look at what a certain criminal organisation masquerading as a religion managed to get their corrupted local judiciary to do to my friend Keith Henson, to see the kind of evil you write in future tense about.

It's okay, Tony - we all know that you're referring to Scientology. And yes, it will be a sorry day if this concept of "defaming religion" means that it's impossible to criticise Scientology.

Trying to work out how a tort relating to invasion of privacy should actually work was a bit beyond the scope of my post - there's a lot of experience with such concepts, even in Australia but probably more so overseas, but I haven't had time to research it or to mull it over with someone more expert in the practicalities of media law. So for the moment, that section of the post is a place-marker. I claim no expertise in how it should best be done, but I'd like to think it through a bit more.

But I thought I should be frank that, although I generally think we should be confining rather than extending defamation law, there might be some movement in the other direction if we were to put defamation and similar concepts on a really rational basis. If anyone has researched this issue or worked in an appropriate jurisdiction, I'd be pleased to hear.

Am I missing something here? On one hand we have Johann Hari publicly declaring his right to pour scorn on religion(s) and for that we applaud him. But when Geert Wilders makes a film (with no voiced narration) that makes a link between passages in the Koran and terrorist violence, he and his tactics are considered 'wrong'. What has really shocked me is that most of the negative comments in the media about Mr Wilders seem to be down to his hair style and his right-wing politics. Are we saying it's okay to be anti-Muslim if you are a left leaning individual (with normal hair) but not if you lean to the right? Also, the charge that Mr Wilders is 'racist' doesn't make sense as Islam is not a race!

I, for one, strongly defend Geert Wilders' freedom of speech. But defending someone's freedom of speech is not the same as actually agreeing with him or hinking he's "nice".

Furthermore, I'm not an absolutist about freedom of speech or anything else. I think that some of the things Wilders says (I mean verbally, not in his film) are deliberate attempts to test the limits, which raises an issue about good faith.

But let's be clear about Fitna. I totally defend the right of Wilders to make a film such as Fitna and I would totally oppose any attempt to ban it. I've said that before, but it's worth saying again: whatever its merits as piece of film-making, Fitna should not be banned.

Actually, I'm not aware of any attempts to ban it, but if attempts are being made to do so within the EU or elsewhere I'd appreciate that information.

My understanding, which may be wrong, is that the current prosecution of Wilders is not so much an attempt to ban Fitna as to punish him for other things he's said publicly. But I'm happy to be corrected if someone can give detail with proper links.

I too defend Mr Wilder's right to free speech. I agree that his call to ban the Koran doesn't square with his call for freedom of speech, and he should be questioned on that point in a fair debate. However, he was denied that debate in Britain. But I still don't see why he has been ridiculed by the left leaning media, when Mr Hari has been applauded? Surely they are both entitled to publicly criticise Islam? It seems to me that the same message is coming from some very different camps: Geert Wilders, Johann Hari, Richard Dawkins, Melanie Phillips etc. This issue seems to transcend traditional party lines.